HIV Testing and Privacy in Massachusetts

Massachusetts law requires informed written consent for HIV testing and release of HIV-related medical information.

Questions & Answers (Accurate as of May 13, 2014)

Informed Consent

What laws in Massachusetts govern informed consent for HIV testing?

In 2012, Massachusetts changed the HIV testing part of the law12 to require only "verbal informed consent." However, a physician, health care provider, or health care facility may not do any of the following without first obtaining a person’s written informed consent:

Reveal to third parties that a person took an HIV test; or

Disclose to third parties the results of a person’s HIV test.

It is important to keep in mind that this law only prohibits the disclosure of HIV status by health care providers.

A competent adult has the right to decide whether he or she wishes to undergo any medical treatment or testing. Without informed consent, the provision of medical treatment is considered to be a “battery,” a legal claim based upon nonconsensual physical contact with or intrusion upon a person’s body.

What type of consent is considered sufficient?

Consent to an HIV test only needs to be done orally, but disclosure that a person took an HIV test or the results of an HIV test requires written, informed consent and must be HIV-specific, not general.

Written informed consent means that a person must sign a specific release authorizing the health care provider to test for HIV and/or disclose the results of an HIV test.

A general release to a health care provider authorizing the disclosure of medical records and information is insufficient. The release must specifically authorize the disclosure of HIV test results and must state the purpose for which the information is being requested.

What are the possible penalties for health care providers that do not obtain written informed consent?

A health care provider or facility that tests for HIV or discloses an HIV test result without written informed consent violates a Massachusetts law13 that protects consumers from unfair and deceptive trade practices. Under this law, a person may receive compensatory damages for harm such as emotional distress, attorneys’ fees and, under certain circumstances, multiple damages—damages up to three times the amount of a person’s actual damages. A physician may also be liable for medical malpractice or battery.

Minors and Informed Consent

Can minors give informed consent?

Under Massachusetts law, minors (persons under the age of 18) are generally considered to lack the legal capacity to consent to medical treatment. However, given the importance of making HIV testing available to adolescents, there are two sources of law that authorize a minor to consent to medical treatment or testing, such as an HIV test, without the consent of a parent or legal guardian.

Both lawmakers and the courts have acknowledged the importance of minors being able to make independent decisions about their health care in certain circumstances.

What laws govern minors and informed consent?

Massachusetts law14 provides that a minor may give consent to medical or dental care if he or she is:

Married, widowed or divorced;

A parent of a child;

A member of the armed forces;

Pregnant or believes herself to be pregnant;

Living separate and apart from his parents or legal guardian and is managing his own financial affairs; or

“Reasonably believes himself to be suffering from or to have come in contact with any disease defined as dangerous to the public health [by the Department of Public Health] pursuant to Chapter 111.” The list of such diseases includes HIV. The minor may only consent to care relating to the diagnosis or treatment of that disease.

A physician or dentist is not liable for performing a procedure without informed consent if the physician relied in good faith on the patient’s statement that he or she is over 18 years of age.

Medical or dental records and other information about a minor who consents to treatment are confidential and may not be released except with the consent of the minor or upon a judicial order. The statute, however, creates an exception to the confidentiality of a minor’s medical information when the physician or dentist “reasonably believes” that the minor’s condition is “so serious that his life or limb is endangered.” In this case, the physician or dentist must notify the parents or legal guardian of the minor’s condition.

What do the courts say about minors and informed consent?

In addition to the provisions of Chapter 112, Section 12F, courts have held that minors can provide informed consent for medical treatment if they are sufficiently intelligent and mature to understand the risks and benefits of treatment, regardless of financial independence or living situation. This is known as the “mature minor” rule.

Courts will typically assess the minor’s age, experience, education, training, judgment, conduct and demeanor to assess whether under a particular circumstance the minor has the ability to appreciate the nature and consequences of treatment.

Courts will give particular weight to how close the person is to majority (18 years of age), the benefits of the treatment or test (which are significant in the case of an HIV antibody test), and the complexity of the treatment or test.

Does Massachusetts have reporting laws that require HIV or AIDS diagnoses to be reported to the Department of Public Health?

Yes. All states require that certain health conditions be reported to public health authorities in order to track epidemiological trends and develop effective prevention strategies. Massachusetts requires that licensed health care providers and health care facilities licensed by the Department of Public Health report HIV and AIDS cases by name to the Massachusetts HIV/AIDS Surveillance Program. AIDS cases have been reportable by name since 1983. In 1999 HIV cases became reportable using a unique identifier code. Due to funding conditions by the federal government, however, Massachusetts was forced to require HIV reporting by name beginning January 1, 2007.

The Department of Public Health has strong security measures in place to prevent dissemination of HIV/AIDS reporting data. In addition, state regulations prohibit names from being shared with anyone else, including state or federal government entities.15

Privacy

What laws in Massachusetts protect the privacy of medical information, such as HIV?

As noted above, the HIV testing statute prohibits a health care provider from disclosing to a third party the results of an HIV test without written informed consent. A more general Massachusetts privacy law applies in other contexts.

Massachusetts law16 provides:

A person shall have a right against unreasonable, substantial or serious interference with his privacy.

How do courts determine whether there has been a violation of this general privacy law?

As an initial matter, in order to be protected by this law, a person must have a “privacy right” in particular information. Courts have ruled that a person has a privacy right in HIV infection status because:

HIV is personal medical information; and

HIV is associated with significant social stigma and discrimination.

Simply having a “privacy right” in certain personal information, however, does not mean that every disclosure is a violation of the law.

In analyzing whether there has been a violation of the statute, courts will determine whether there is any legitimate countervailing reason for the disclosure. In other words, a court will balance privacy rights versus other reasons that a defendant articulates as to why a disclosure was necessary in spite of the infringement upon privacy.

For example, if an employee reveals his or her HIV status to a supervisor, the supervisor may only reveal that information to others for a necessary business reason. It may be considered a legitimate business reason to discuss the employee’s HIV status with other management personnel in connection with making adjustments to a person’s job duties as a reasonable accommodation. It would not, however, be a legitimate business reason to tell the employee’s co-workers or non-essential management personnel.

If a day care center or school revealed the identity of a child or student with AIDS to parents or other students, there is a good argument that such conduct violates Massachusetts law. There is no legitimate interest in disclosing the child’s HIV status, especially since the risk of transmission to others is minuscule.

Does a person with HIV have a constitutional right to privacy?

Many courts have found that a person has a constitutional privacy right to the nondisclosure of HIV status. Courts have based this right on the Due Process Clause of the U.S. Constitution which creates a “privacy interest” in avoiding disclosure of certain types of personal, intimate information.

The constitutional right to privacy can only be asserted when the person disclosing the information is a state or government actor — e.g., police, prison officials, doctors at a state hospital.

Similar to the Massachusetts privacy statute17, courts balance the nature of the intrusion into a person’s privacy against the weight to be given to the government’s legitimate reason for a policy or practice that results in disclosure.

Do health care professionals ever have an obligation to warn a third party about a client’s HIV status?

It is the AIDS Law Project’s view that there is no clear justification for such a breach of confidentiality under Massachusetts law, even if a counselor or physician learns that a client is engaging in unsafe sex or other risky behavior without having disclosed his or her HIV-positive status to a partner. Providers and consumers alike, however, should be aware that the case law in this area is still developing and remains unresolved. For a legal opinion on how to handle a specific situation, consult with a supervisor or lawyer.

Do provisions under Massachusetts law that permit health care providers, under certain limited circumstances, to warn third parties of potential harm apply to HIV status?

It is the AIDS Law Project’s position that these provisions should not be understood to apply to HIV.

Take, for example, the Massachusetts statute that permits licensed social workers and licensed mental health professionals to warn third-parties under certain limited circumstances.18 Under certain circumstances, Massachusetts law provides that a social worker may, but is not legally mandated to, disclose confidential communications, including situations when:

The client has communicated an explicit threat to kill or inflict serious bodily injury upon a reasonably identified victim or victims with the apparent intent and ability to carry out the threat;

The client has a history of physical violence that is known to the social worker and the social worker has a reasonable basis to believe a client will kill or inflict serious bodily injury on a reasonably identifiable victim.

There are virtually identical statutes for licensed psychologists19 and licensed mental health professionals20.

And, with respect to physicians, the Massachusetts Supreme Judicial Court stated in Alberts v. Devine in 1985, that physicians owe patients a legal duty not to disclose confidential patient medical information without the patient’s consent, “except to meet a serious danger to the patient or others.” The Court did not, and has not since then, articulated the meaning and scope of the words “serious danger.”

Neither of these provisions provides clear legal justification to breach the confidentiality of a client’s HIV status, in light of the specific Massachusetts statute prohibiting the involuntary disclosure of HIV status by a health care provider.

No court has ever interpreted the relationship between the HIV confidentiality statute and other general provisions permitting disclosure of patient information under limited circumstances by doctors or mental health providers. Therefore, providers who involuntarily disclose a client’s HIV status risk liability for invasion of privacy.

However, because this is an evolving area of law, it is crucial to consult an attorney with questions about specific situations.